10 years after the Supreme Court extended marriage rights to all same-sex couples, it will consider whether to take a case asking it to overturn the decision.
Kim Davis, the former Kentucky county clerk who was jailed for six days in 2015 after refusing to issue marriage licenses to a gay couple on religious grounds, is appealing a $100,000 jury verdict for emotional damages plus $260,000 for attorneys fees.
In a petition for writ of certiorari filed last month, Davis argues First Amendment protection for free exercise of religion immunizes her from personal liability for the denial of marriage licenses.
More fundamentally, she claims the high court’s decision in Obergefell v Hodges – extending marriage rights for same-sex couples under the 14th Amendment’s due process protections – was “egregiously wrong.”
“The mistake must be corrected,” wrote Davis’ attorney Mathew Staver in the petition. He calls Justice Anthony Kennedy’s majority opinion in Obergefell “legal fiction.”
While acknowledging that this court has made a mockery of the law when it suits its needs, there’s still a practical motivation to not open up the Pandora’s box that would be dismissing the requisite of standing. If people could bring up cases without having to establish standing, the courts would become entirely gummed up with frivolous lawsuits. So I think, at worst, the courts would rule that public employees aren’t obligated to carry out most public duties that clash with their personal beliefs. But Davis wouldn’t have standing to get Obergefell overturned as she hasn’t demonstrated harm being done by that law, just the ones that require public employees to carry out public duties they might disagree with.
I emphasize most, as I’m sure an exception would be made for duties found to have “overriding state interest.” That way the laws will still be in place for those “interests” that serve those in power, while allowing for a semi-back door ban where functionally gay marriage will be barred in jurisdictions where the local government refuses to employ someone to issue marriage licenses to LGBTQ couples.
While acknowledging that this court has made a mockery of the law when it suits its needs, there’s still a practical motivation to not open up the Pandora’s box that would be dismissing the requisite of standing. If people could bring up cases without having to establish standing, the courts would become entirely gummed up with frivolous lawsuits. So I think, at worst, the courts would rule that public employees aren’t obligated to carry out most public duties that clash with their personal beliefs. But Davis wouldn’t have standing to get Obergefell overturned as she hasn’t demonstrated harm being done by that law, just the ones that require public employees to carry out public duties they might disagree with.
I emphasize most, as I’m sure an exception would be made for duties found to have “overriding state interest.” That way the laws will still be in place for those “interests” that serve those in power, while allowing for a semi-back door ban where functionally gay marriage will be barred in jurisdictions where the local government refuses to employ someone to issue marriage licenses to LGBTQ couples.